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Friday, July 1, 2016

It is fascinating how some people in Family Court believe
that anything goes. Dirty fighting, low blows, torpedoes and surprise maneuvers
are common. Lying is almost expected. At
least it is not shocking. It is
understood that people embellish, re-invent history and even create fiction to
gain some imagined advantage. The system
has few methods with which to deal with this, but we will discuss some of the
effects of scorched earth litigation.

Of course it would be simple if divorcing or litigating
parties would be cooperative and conserve their financial resources. The more
litigation, the more legal fees. But if
they were so cooperative, they might still be happily married. As I discussed in earlier posts, much that
drives matrimonial and other family court litigation is related to emotions and
beliefs. The emotions that one may be
experiencing could include extreme anger, extreme anxiety, extreme
depression. The cognitive basis for
these emotions could include beliefs such as perceiving one’s self as a victim,
as abandoned, betrayed, humiliated, robbed, etc. “That so-and-so ruined my
life!” As a person falls into that trap
of these irrational cognitive beliefs or self-perceptions, then it is common to
blame the other party for the abandonment, betrayal, humiliation and robbery
that is perceived. Blaming the other party and being the victim is always unhealthy
emotionally and financially. The resulting
tunnel vision of such a person leads that person to lock into a narcissistically
self-centered theory of the (marital) circumstances which is difficult to climb
out of. It doesn’t make things easier
when a client distorts the facts to their lawyer who takes up their cause, and
when well-meaning family and friends encourage a parson to take the other party
“to the cleaners.”

When a person has the beliefs outlined above, and as a
result is enraged at the other person (e.g. an estranged spouse), many people
(not all) will give themselves permission to act badly against the other. The perceived victim may indeed feel totally
justified in besmirching the other party’s name in the community, making
marital property (not yet divided up) disappear or damaged, or worse. False allegations can be commonly found in
domestic violence complaints, in financial allegations and with regard to
parenting skills or involvement. A
parent who wants to hurt the other, may use the children as a weapon. This is
sadly common. The children suffer and it
often becomes clear to the Judge that one parent is doing this, causing upset
or alienation, or other problems. The
Court, once this is clear, will come down hard on the parent causing problems
for the children and for the other parent. It is not so difficult to identify in
most cases.

False domestic violence allegations are very damaging and
cause immediate consequences to the falsely accused party, if a Temporary
Restraining Order (TRO) is issued. This
includes being immediately kicked out of the house with the shirt on your back,
having your legally obtained weapons confiscated, and perhaps not being allowed
to have contact with the children. All
of this is Temporary (in NJ where I practice) until the final hearing which is
a trial. If the trial results in a Final
Restraining Order (FRO), then it is permanent until and unless dismissed by the
plaintiff, the person who sought the order. (We are only talking here about
false allegations and not the majority of complaints that truly reflect
incidents of domestic violence and rightly result in an FRO.). The result of being wrongly accused of
domestic violence when none has occurred, besides being horrifically malicious,
is a financial loss due to the attorneys’ fees the defendant must spend to be
defended in this trial. The trial can involve calling witnesses, introduction
of evidence (e.g. tapes, photos, texts, etc.) and may be continued over a
period of days. It is possible to spend
tens of thousands of dollars (but more likely around $10,000) to defend a
complaint of domestic violence. It also costs the accuser for the days in court
and the resultant legal fees.

False accusations of dissipating marital assets, stealing
or hiding marital money, transferring property to the name of others to “hold”
for the owner, or charging up a storm on the spouse’s credit card can also cause
much damage and result in high fees. A
forensic accountant, depending on the nature of the valuation of a business, or
evaluation of where money went, can cost anywhere from $15,000 to $50,000. Depending on the complexity of the case, the
sky is the limit. If the accusing spouse
is simply making accusations over feeling cheated, without a concrete
(documented) basis, it will end up costing the accusing spouse a lot of money
just to vex the other spouse. In fact, a
Judge could make the party requesting a forensic accounting pay for it
100%. The same is true for an accuser
who wants a vocational evaluation for a spouse who is accused of being “voluntarily
underemployed”. The question is whether
it is really worth it to throw out $10,000 or $25,000, or whatever it is, just
to “go after” the other party due to anger?
Some would say yes, it’s worth it.
But besides the bad Karma, and the risk of losing one’s credibility with
a Judge, there might be a better use for those funds, such as a vacation or
maybe psychotherapy.

It is common, when child custody or parenting time
disputes arise, for parents to allege
all kinds of things about the other parent that they never alleged before. A good example is an allegation that the
other parent drives the children in the car when intoxicated or under the
influence of something. This begs the question of “Then why did you allow your
spouse to drive the children with that spouse for the past 8 years, thereby
putting them in danger?” False
accusations that the other parent was never involved with the children when
that parent actually was, or that the other parent is not interested in
the children or does not participate in the children’s lives, becomes “he
said-she said” to a Judge. Most of the
time, with opposing allegations, or with allegations and denials, a Judge will
refer the parents and children for a psychological evaluation as to the best
interests of the children or for a custody recommendation. Just parenthetically, a full psychological
evaluation with a written report on a family could cost between $15,000 and
$25,000. Court testimony is extra. But the Roman theatre includes low blows,
dirty fighting and distraction. It is no
different in Family Court with some people who have a score to settle.

At the end of the day, the Court has one ultimate tool in
the decision making process, namely the trial.
If there are disputes of material fact, possibly credible accusations or
allegations on both sides, and there is a dearth of clear unequivocal evidence
available, then the Court will set a date for a trial on the issues, with
discovery (e.g. document production, depositions, reports from forensic
experts, etc.) deadlines. You can count
on such a trial costing from $25,000 to $75,000 or more, depending on the
complexity of the issues. If this
litigation is being driven by anger and vengeance, it is very unfortunate and
dysfunctional. You will lose all of your
savings unless you are very wealthy. You
may go into debt to finance this.

When the trial is over and the Judge makes her or his
determinations, you will find that most of the time, it will be in the
neighborhood of a midpoint between the previous positions of the two
parties. Had they gone to mediation, or
worked it out between themselves and then had their attorneys draft an agreement,
they could have saved a ton of money and gotten the same or similar outcome. But vengeance is sweet. Sweet can be very expensive.

Not only is the seeking of vengeance or retribution
expensive financially, it also takes an emotional toll on both parties. It is self-inflicted suffering. For someone who perceives themselves to be a
victim, this is perfect. But not
everyone wants to be in litigation for the fun of it. Often, the accuser will leave the trial very
surprised and devastated that the Judge was not very impressed with the
allegations, or with the evidence, or with the credibility of the accuser. So not only was the defendant forced to spend
a lot of money on a lawyer to defend themselves but the plaintiff/accuser threw
their money out needlessly just to get even with the spouse that was such a “bad
person” to that spouse. Trials are
sometimes necessary to get to the truth when the truth is not readily apparent
to a Judge. Two people can genuinely
disagree on how much time a child should spend in a particular parent’s home,
or disagree on how much money was spent on certain things that now should be a
financial credit for a party. Genuine
disagreement, especially when mediation efforts failed, will be resolved by a
Judge. But to waste the court’s time and
to put the other party through the wringer out of malice, is just dysfunctional,
wasteful, and abusive. Unless a party
wants to drag things out to punish the other party, it is better to work things
out amicably, whether between themselves or in mediation, than to use the
Family Court as a Roman theatre to act out their hatred of the other
party. And if you believe in Karma, well, it often comes back to bite you later on.

Please note, this blog is for information purposes only. It is not legal or psychological advice and it does not create an attorney/client or psychologist/patient relationship. If you have a question about a specific matter you should seek out an attorney or mental health expert to assist you.